Current Status
On Sep. 30, 2021 EPA reinstated the Obama administration’s 2015 SIP Policy, which requires SIP emission limitations to be continuously applicable during periods of start up, shut down, or malfunction (SSM). On March 1, 2024, the D.C. Circuit vacated EPA’s outstanding SSM SIP calls.
Why it Matters
Power plants and other industrial sources emit more pollution as they start up, shut down, or when they malfunction (SSM) than during normal operations. These periods of higher pollution have negative effects on air quality and human health.
EPA publishes nonbinding policy statements for SSM emissions and approves or disapproves State Implementation Plans (SIPs) under the Clean Air Act (CAA). Historically, states allowed exemptions, enforcement discretion, or affirmative defenses during SSM periods. EPA approved some SIPs that included exemptions for emissions during SSM periods, but recent federal administrations have issued SIP calls based on SSM provisions.
Timeline
Nov. 26, 2024 In response to the D.C. Circuit’s vacatur of the 2015 SIP call, EPA issued a direct final rule partially withdrawing findings that 13 states failed to submit SIP revisions.
Oct. 7, 2024 EPA filed a respondent brief in SSM Litigation Group arguing that petitioners have failed to demonstrate standing and that EPA correctly removed the SSM affirmative defense. SSM Litigation Group v. EPA, Docket No. 23-1267 (D.C. Cir.).
July 29, 2024 Petitioners in SSM Litigation Group filed a brief arguing that EPA’s removal of the SSM affirmative defense was based on an incorrect interpretation of the Clean Air Act and was arbitrary and capricious. SSM Litigation Group v. EPA, Docket No. 23-1267 (D.C. Cir.).
Mar. 1, 2024 The D.C. Circuit vacated EPA’s 2015 SSM SIP Call, holding that EPA had improperly denied SIPs with automatic exemptions. The Court held that EPA had failed to show that it was “necessary or appropriate” for emissions limitations to apply on a continuous basis. Environmental Committee of the Florida Electric Power Coordinating Group, Inc., v. EPA, et al., Docket No. 15-1239 (D.C. Cir.).
Sep. 19, 2023 An industry coalition (“SSM Litigation Group”) sued EPA in the DC Circuit, challenging EPA’s final action removing the Title V emergency affirmative defense provisions. SSM Litigation Group v. EPA, No. 23-1267 (D.C. Sept. 19, 2023).
July 21, 2023 EPA issued a final rule removing the “emergency affirmative defense” provisions from EPA’s title V operating permit program regulations, which were implemented by the Trump administration.
Feb. 24, 2023 EPA published a proposed rule, which would remove SSM exceptions from the Texas, North Carolina, and Iowa 2015 SIPs. In the rule, EPA also proposed to issue new findings of substantial inadequacy and SIP calls for deficient SSM provisions for Connecticut; Maine; Shelby County, Tennessee; North Carolina; Buncombe County, NC; Mecklenburg County, NC; Wisconsin; and Louisiana.
Oct. 10, 2022 Environmental Integrity Project and Sierra Club filed a complaint in the DC District Court, seeking to compel EPA to make a compliance determination on Texas’s proposed SIP revision. Texas submitted the SIP on August 20, 2020, and EPA was required to approve or disapprove it in February. The complaint alleged that until EPA acts, the plants will emit dangerous levels of PM during startup, shutdown, and maintenance periods.
Sep. 13, 2022 Environmental groups filed a petition, urging EPA to bar SSM waivers.
June 27, 2022 The US District Court for the Northern District of California approved a final consent decree between EPA and environmental NGOs requiring EPA to take final action on 23 states’ SIPs under the 2015 “SIP Call,” mandating removal of SSM waivers, through 2023. Sierra Club v. EPA, No. 4:21-cv-6956 (N.D. Cal.).
May 5, 2022 EPA published a proposed rule to approve SIP revision requests from Indiana, Michigan, and Minnesota that remove SSM exemptions.
Apr. 11, 2022 EPA issued a notice of proposed consent decree with environmental groups in Sierra Club et al. v. EPA, No. 4:21-cv-6956 (N.D. Cal.). The proposed consent decree would set deadlines for final EPA action on SIPs for multiple states stretching into late 2023 and likely 2024. The Biden administration took this action under EPA’s 2015 “SIP Call” rule, the legality of which was pending before the D.C. Circuit Court of Appeals.
Apr. 1, 2022 EPA published a notice of intent to remove emergency affirmative defense provisions from Title V state operating permit programs as inconsistent with the CAA and D.C. District Court opinions. Though this notice did not apply to SIPs, EPA stated that the notice was intended to align with its SSM policy for SIPs.
Mar. 25, 2022 The D.C. Circuit heard oral arguments on EPA’s SIP Call that required states to remove waivers that allow increased emissions during SSM events. Environmental Committee of the Florida Electric Power Coordinating Group, Inc., v EPA, et al., No. 15-1239 (D.C. Cir. Jan. 3, 2022). Listen to oral arguments.
Feb. 2, 2022 EPA filed a supplemental brief arguing that judicial review needs to be based on the 2015 memorandum that is now in place and that the CAA does not allow affirmative defense SIP provisions . Environmental Committee of the Florida Electric Power Coordinating Group, inc., v EPA, et al., No. 15-1239 (D.C. Cir. Jan. 3, 2022).
Jan. 12, 2022 EPA found that twelve states failed to submit revisions as required by the 2015 SIP Call. The states were required to submit a plan within two years or they would become subject to a FIP and could face sanctions.
Jan. 3, 2022 Sixteen states and industry groups asked the D.C. Circuit to vacate EPA’s reinstatement of the 2015 guidance memo and SIP calls. The states argued that the memo relied on a misinterpretation of the term “emission limitation” as used in the CAA and that EPA misread and improperly relied on two D.C. Circuit cases. Environmental Committee of the Florida Electric Power Coordinating Group v. EPA, Docket No. 15-1239 (D.C. Cir. Jan. 3, 2022).
Sep. 30, 2021 Deputy EPA Administrator Janet McCabe issued a memorandum to EPA’s regional administrators withdrawing the Oct. 9, 2020 guidance memo on startup, shutdown, and malfunction exemptions in SIPs and reinstating the 2015 SSM SIP Action policy. The memo noted that EPA would also revisit the 2020 North Carolina, Texas, and Iowa SSM SIP call withdrawals.
Sep. 8, 2021 Three environmental groups filed a lawsuit seeking to compel EPA to make determinations on SIPs, including determinations that certain states “failed to submit” SIPs in accordance with EPA’s 2015 action. Sierra Club v. Regan, No. 4:21-cv-06956 (N.D. Cal.).
Apr. 12, 2021 The Sierra Club and other environmental organizations filed a petition of reconsideration and rulemaking with EPA asking it to reconsider its withdrawal of SIP calls to Texas, North Carolina, and Iowa and to withdraw its 2020 guidance memorandum.
Jan. 20, 2021 President Biden signed EO 13990 that directed all agencies to review and consider revising rules issued and agency actions taken during the Trump administration. The 2020 guidance memorandum was included in the White House’s “List of Agency Actions for Review.”
Jan. 15, 2021 Environmental groups petitioned the D.C. Circuit to review EPA’s approval of Iowa’s SIP revision. Sierra Club et al. v. EPA, Docket No, 21-1022 (D.C. Cir.).
Oct. 2020 EPA published a guidance memorandum stating that exemption and affirmative defense provisions may be permitted in SIPs under certain circumstances. This memo supersedes the 2015 guidance. EPA also finalized a rule approving Iowa’s SIP revision, withdrawing its SIP Call. SIP Calls remain active in 33 states and the District of Columbia.
June 29, 2020 Environmental groups challenged EPA’s approval of North Carolina’s SIP. Sierra Club et al. v. EPA, Docket No. 20-1229 (D.C. Cir.).
Apr.-June 2020 EPA approved North Carolina’s SIP revision, withdrawing its SIP call.
Apr. 7, 2020 Environmental groups challenged EPA’s Feb. 2020 decision on Texas SIP revision. Sierra Club et al. v. EPA, et al, Docket No. 20-01115 (D.C. Cir.).
Feb. 7, 2020 EPA withdrew its finding that Texas’ SIP revision was inadequate. The decision departed from EPA’s 2015 SIP Call and allowed Texas to incorporate certain affirmative defenses into its SIP.
June 5, 2019 Departing from the 2015 SIP Call, EPA proposed approving North Carolina’s SIP
Apr.-June 2017 The D.C. Circuit canceled oral argument and dismissed one case challenging EPA’s SIP Calls while EPA reviews the action. Walter Coke v. EPA, No. 15-1166 (D.C. Cir.). The D.C. Circuit consolidated additional cases under Env’tl Comm of Florida Elec. Power Coordinating Group v. EPA, Docket No. 15-1239 (D.C. Cir.).
Mar. 15, 2017 The Texas Commission on Environmental Quality petitioned EPA to reconsider the SIP call issued to Texas in the 2015 SSM SIP Action.
Jun. 12, 2015 EPA published a final action requiring thirty-six states to revise their SIPs by Nov. 22, 2016. EPA published an SSM SIP Policy that explained that the “an emission limitation[s] must be applicable to the source continuously, i.e., cannot include periods during which emissions from the source are legally or functionally exempt from regulation.” SIPs may not include automatic or discretionary exemptions or “overly broad enforcement discretion” provisions.